1. This is a petition filed by the petitioners, the Maharashtra Sugar Mills, Ltd., against the first respondent, the Industrial Court consisting of P.S. Bakhle, member of the Industrial Court, the second respondent, the State of Bombay, and the respondents 3 and 4 on behalf of themselves and all other persons interested and deriving benefit under the order dated the 29th December 1949 made by the first respondent, for a writ of certiorari against the respondents calling for the records of the proceedings whereby the first respondent purported to make the said order dated the 29th December 1949 and to quash the same and for further and other reliefs.
2. The matter arises this way. The Maharashtra Sugar Mills, Ltd. are a company registered under the Indian Companies Act and they have got their Mills at Tilaknagar (Belapore Road), district Ahmednagar. In the course of their business they employ labour of various categories. The one is what may be called muster labour and the other is what may be called contract labour. There is also seasonal employment of labour in accordance with the exigencies of the various operations in the manufacture of sugar. By a notification dated 8th January 1948 published in the Government Gazette under Section 2(4) of the Bombay Industrial (sic) Act, 1946(?) (Bombay Act 11 of 1947), the Provincial Government applied the provisions of the Act, to sugar industry with effect from the 12th January 1948. It appears that in the area of operations of the Mills there was in existence the Belapur Kamgar Union which is a representative union registered under the Bombay Industrial Relations Act, 1946, and a dispute was raised presumably by the union representing the interests of the various types of labour employed by the Mills asking for payment of six months' wages as bonus for the year 1947-48 to all employees including the seasonal and contract labour. It may be noted that 1947-48 in this context meant the 1st October 1947 to 30th September 1948. This dispute was not likely to be settled by other means and therefore having resort to the provisions of Section 73 of the Act the Provincial Government issued a notification on the 1st April 1949 in the terms following:
Whereas an industrial dispute has arisen between the Maharashtra Sugar Mills, Limited, Belapur Road, district Ahmednagar, and its employees (hereinafter referred to as 'the said industrial dispute') in respect of payment of six months wages as bonus for the year 1947-48 to all employees including the seasonal and contract labour;
And whereas the Provincial Government is satisfied that the said industrial dispute is not likely to be settled by other means;
Now, therefore, in exercise of the powers conferred by Section 73 of the Bombay Industrial Relations Act, 1946 (Bom. XI of 1947), the Government of Bombay is pleased to refer the said industrial dispute to the arbitration of the Industrial Court.
3. On a reference made to the Industrial Court in this manner, the Industrial Court consisting of P.S. Bakhle, member of the industrial Court, entered upon the reference. The Belapur Kamgar Union filed a statement of claim on behalf of the workers of the company. The company also filed a written statement advancing their contentions in respect of the demands for bonus. The hearing before the Industrial Court commenced on the 6th September 1949. At the very outset counsel appearing for the company raised an objection to the jurisdiction of the Industrial Court to go into the dispute in regard to contract labour and continued to appear under protest and without prejudice to the company's plea as to the first respondent's want of. jurisdiction. Considerable evidence was led Before the Industrial Court and the Industrial Court made its award on the 8th December 1949 whereby it awarded bonus equal to 3/8th of the total basic earnings earned during the year 1947-48 on the conditions as stated therein. This award was published in the Government Gazette on the 29th December 1949 and the petitioners filed this petition for the reliefs which I have mentioned above on the 22nd February 1950.
4. In the petition as filed, the petitioners after setting out the facts hereinbefore stated contended that the persons constituting the so-called contract labour were not in fact employed by the company nor were they employees of the company within the definition contained in Section 3(13)(a) of the Bombay Industrial Relations Act, 1946, or otherwise. They denied that the relationship of master and servant existed between the persons constituting the so-called contract labour and the company or between the said persons and any contractor. They therefore submitted that the Government of Bombay under the circumstances had no power to refer to the arbitration of the Industrial Court any alleged dispute between the company and the so-called contract labour and that the Industrial Court had no jurisdiction to enter upon the said reference in regard to contract labour. The petitioners incidentally also contended that the Bombay Industrial Relations Act, 1946, was made applicable to the sugar industry on the 12th January 1948 and even assuming without admitting that the effect of the said notification was to render the persons comprising the so-called contract labour the 'employees' of the company for the purposes and within the meaning of the Act, the company were not and could not be made liable for payment to the so-called contract labour of any bonus or any other form of direct remuneration in respect of any period from the 12th January 1948 which was only about 8 months and a half of the year 1947-48 in respect of which the bonus had been demanded. The petitioners lastly contended that having regard to the-circumstances of the employment of the so-called contract labour there was no provision of law in the act or elsewhere that the company as employer are or can be made, liable for the payment to the so-called contract labour of bonus or wages or any other form of direct remuneration.
5. In support of their argument in regard to the want of jurisdiction in the Industrial Court to entertain this demand of bonus on behalf of the so-called contract labour the petitioners also contended that the question whether the so-called contract labour were employees of the company within the meaning of the Act was a fact collateral to the actual matter which the Industrial Court had to try, viz., whether, and if so, how much bonus should be paid, and the first respondent could not by a wrong decision with regard to the said collateral fact give himself jurisdiction which he did not otherwise possess.
6. After this petition was presented before me on the 22nd February 1950 the petitioners were advised in so far as they sought to obtain from the Court an injunction restraining the payment of the bonus to the so-called contract labour to implead the respondents 3 and 4 in their representative capacity as party respondents to the petition; and a supplementary petition was filed by the petitioners on the 23rd February 1950 for amending the original petition. This amendment was granted by my brother Coyajee and he passed an order of interim injunction in terms of prayer (c) (i) and (c) (ii) against the newly added respondents Nos. 3 and 4.
7. An affidavit in reply was filed on behalf of the first respondent by Jagannath Ravji Dhurandhar on the 13th June 1950 wherein it was contended that the fact which was to be decided by the industrial tribunal, the first respondent, was a part of the very issue which it had to enquire into and not collateral to it and that therefore no writ as prayed for could be granted, by this Court. It was further contended that the contract labour were employees of the petitioners within the meaning of definition given in the Bombay Industrial Relations Act, 1946, and that the relationship of master and servant existed between the persons constituting the contract labour and the petitioners or between the said persons and any contractor. It was lastly contended that it was within the jurisdiction of the first respondent to decide whether it had jurisdiction to hear the reference or not in any event so far as the contract labour were concerned. These were the rival contentions on which the petition came on for ultimate hearing and final disposal before me.
8. Before I deal with the various contentions which have been urged before me, I will refer to the various provisions of the Bombay Industrial Relations Act, 1946, which would fall to be considered by me. Section 3(13)(a) of the Act defines the term 'employee' and it says:
'employee' means any person employed to do any skilled or unskilled manual or clerical work for hire or reward in any industry, and includes--
(a) a person employed by a contractor to do any work for him in the execution of a contract with any employer within the meaning of Sub-clause (e) of Clause (14). Section 3(14)(e) runs as under:
(e) where the owner of any undertaking in the course of or for the purpose of conducting the undertaking contracts with any person for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the undertaking, the owner of the undertaking.
Section 3(17) defines anindustrial dispute as:
meaning any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with .any industrial matter.
Section 3(18) defines an industrial matter in the manner following:
Industrial matter means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees, or the mode, terms and conditions of employment, and includes
(a) all matters pertaining to the relationship between non-employment of any person;
(b) all matters pertaining to the demarcation of functions of any employees or class of employees;...and
(d) all questions of what is fair and right in relation to any industrial matter having regard to the interest of the person immediately concerned and of the community as a whole.
Section 73 of the Act invests the Provincial Government with power to refer industrial dispute to Industrial Court for arbitration and is in terms following:
Notwithstanding anything contained in this Act, the Provincial Government may, at any time, refer an industrial dispute to the arbitration of the Indus trial Court, if on a report made by the Labour Officer or otherwise it is satisfied that....
(2) the dispute is not likely to be settled by other means;....
Section 87 of the Act enacts the duties of the Industrial Court and says:
It shall be the duty of the Industrial Court
(vi) to decide industrial disputes referred to it under Sections 71, 72, 73 or 73A.
(viii) to decide questions relating to the interpretations of this Act or rules made thereunder and standing orders referred to it under Section 91; and....
(x) to decide such other matters as may be referred to it under this Act or the rules made thereunder.
9. These are the relevant provisions of the Act which will require to be considered by me in the later part of my judgment.
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10. On all the circumstances I have adverted to above I have come to the conclusion that the determination of the question whether contract labour are comprised within the definition of employee in Section 3(13)(a) of the Act was not within the jurisdiction of the Industrial Court or was not in any event such as, if it was erroneous, could not be canvassed' before me in this application which is made by the petitioners for the issue of a writ of certiorari. The preliminary objection of Mr. G.N. Joshi therefore fails.
11. Proceeding with the matter on the merits, the question to be determined by me therefore is whether the contract labour are comprised within the definition of 'employee' contained in Section 3(13)(a) of the Act. It was urged by Mr. G.N. Joshi that in this case we are not concerned with the relation of master and servant but we are only concerned with the definition of 'employee' arid 'employer' as contained in Section 3(13)(a) and Section 3(14)(e) of the Act. Mr. Beynon on the other hand contended that in order to determine whether the relationship between the petitioners and the contract labour was as between employer and employee the Court would have to determine whether the relationship between them was that between master and servant. No doubt when construing statutes like the Bombay Industrial Relations Act which contain a section of definition and contain inter alia the definition of employers and employees, one should not be guided by any considerations except the strict terms of the definitions themselves. It would not do to import outside considerations or considerations which are germane to the various relationships known to law as for example master and servant, etc. In this behalf I shall also not hold Mr. G.N. Joshi to the statement which was made in the affidavit of Jagannath Ravji Dhurandhar, viz.:
I say that the relationship of master and servant existed between the persons constituting the contract labour and the petitioners or between the said persons and any contractor.
12. I do not want to decide this question on what may be said to be an admission made by the party making his affidavit in) reply. I would prefer to be guided by the terms of the definitions of employee and employer contained in Section 3(13) and Section 3(14) of the Act itself, and there I find that employee is defined as meaning any person employed to do any skilled or unskilled manual or clerical work for hire or reward in any industry. Even the inclusive definition contained in Section 3(13)(a) of the Act talks of the person employed by the contractor. The definition employer contained in Section 3(14) does not throw any particular light on this aspect of this question. It only includes the owner of any undertaking in the category of employer qua the person who takes a contract from him for doing a particular piece of work. The very word 'employed' which has been thus used in the definition of employee and in Section 3(13) and 3(13)(a) of the Act imports to my mind the relationship between employer-employee ordinarily so-called, in other words the relationship between master and servant, and it is necessary therefore to consider what is of the essence of that relationship so that on the appreciation of that, one may rightly come to the conclusion whether as between the petitioners and the contract labour the relationship was as between employer and employee.
13. The relationship between master and servant is thus referred to in Halsbury's Laws of England, Hailsham edition, Vol. 22, page 112, paragraph 191:
Whether or not, in any given case, the relation of master and servant exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.
14. This relationship is compared with other relations known to law, as for example, principal and agent, and employer and contractor. At page 113, paragraph 192, of the same volume one finds:
The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do; but a master has the further right to direct how the work is to be done.
Again at page 115, paragraph 194:
The relation between employer and contractor does not give rise to the same liability of the employer as does the relation between master and servant. A contractor is to be regarded as a person carrying on an independent business.
To distinguish between an independent contractor and a servant, the test is whether or not the employer retains the power, not only of directing what work is to be done, but also of controlling the manner of doing the work. If a person can be overlooked and directed in regard to the manner of doing his work, such person is not a contractor, and it makes no difference that his work is piecework.
15. This distinction is also to be found in Halsbury's Laws of England, Hailsham edition, Vol. 1, page 193, paragraph 345:
An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference, and merely undertakes to produce a specified result, employing his own means to produce that result.
16. Mr. Beynon for the petitioners drew my attention to the remarks of Collins, M.R. in Vamplew v. Parkgate Iron and Steel Co. (1903) 1 K.B. 851 at page 852.
The words of that Act defining a 'workman' are no doubt very wide. But the cardinal feature apparent on the face of the Act is that it deals with the relation of employer and employed, as is shown by the title of the Act, and by the words in the definition itself, 'engaged in an employment to which this Act applies.' Where a man undertakes to do work as a contractor, that, prima facie at any rate, negatives the existence of the relation of employer and employed, and shows that the contract is not one of employment within the meaning of the Act.
17. Mr. Beynon also referred to Simmons v. Health Laundry Co. (1910) 1 K.B. 543 where the question arose whether the case of the injured person who was earning 7s. a week at the laundry and also 3s. a week for giving lessons in piano when injured the court should take into account the latter sum in assessing the amount of compensation. The country court judge held that as teacher of music she did come within the definition of workman in the Act. On appeal it was held that the question whether an applicant in any particular case was a workman within the Act was a question of fact and that there was evidence to support the finding of the county court judge, and the meaning of 'contract of service' was discussed in the course of the judgment.
18. Fletcher Moulton, L.J., at page 549 observed:
It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the control is not one of service.
Buckley. L.J , observed at page 552:
A contract of service is one which necessarily involves the existence of a servant, and the parties contemplated by this Act may be called, I think, either employer and workman or master and servant, but subject to the limitation that the servant must be one who falls within the definition of workman as contained in Section 13. 'A servant' said Bramwell, L.J , in Yewmens v. Noakes (1880) 6 Q.B.D. 530, 'is a person subject to the command of his master as to the manner in which he shall do his work.' To distinguish between an independent contractor and a servant, the test is, says Crompton, J. in Sadler v. Henlock 4 E. &. B. 570 , whether the employer retains the power of controlling the work. Sir Frederick Pollock in his book on Torts, p. 79, says 'the relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other.' This definition I think requires some qualification. Suppose that a motor car can lawfully be driven only by a person who holds a certain licence and is thereby bound to conform to certain public regulations. The driver may be the servant of the owner of the car, although the owner cannot control his work in the particulars in which the driver is controlled by the regulations. But broadly stated a contract of service does import that there exists in the person serving under the contract an obligation to obey the orders of the person served. A person employed to exercise his skill may or may not be a servant. The football player in Walker v. Crystal Palace Football Club ante. p 87, was held to be a workman, that is, to be employed under a contract of service notwithstanding that in certain respects ir was his duty to exercise his own judgment uncontrolled by anybody. On the Other hand in Bagnall v. Levinstein Ld (1907) 1 K. B. 53 a skilled chemist was held not to be a workman notwithstanding that his employment involved manual labour. 'The root of the matter,' said Collins M. R. in the 'last mentioned case, is that each case must be decided in view of that which the person whom it is sought to treat as a workman was employed to do.
19. Mr. Beynon referred me to two more cases which have a great bearing on the question which has to be decided by me in this connexion, and they were Jones v. Corporation of Liverpool (1885) 14 Q.B.D. 890 and Steel v. The South-Eastern Railway Co. 16 C.B. 550 Jones v. Corporation of Liverpool (1885) 14 Q.B.D. 890 was a case where D had contracted with the defendants, an urban authority, to supply by the day a driver and horse to drive and draw a watering-cart belonging to the defendants. The driver was employed and paid by. D; and was not under the defendants' direction or control otherwise than that their inspector directed him what streets to water. In an action to recover damages for injuries caused by the negligent conduct of the driver whilst in charge of the car, it was held that the defendants were not liable. Now, in this case defendant had employed inspectors to superintend and supervise the watering of their streets and it was a part of their duty as such inspectors to direct the driver of the watering cart whether to water the streets or not; otherwise the inspectors had no control over the driver of the cart. Grove, J., at page 893 observed:
The facts of the present case are very like those in Quarman v. Burnett & M. & W. 499. The water-cart belonged to the defendants, and the driver and horse were hired by them from Mrs. Dean. In Quarman v. Burnett the carriage belonged to the defendants, who hired the horses and a driver from a job-mistress; and the Court held that the defendants were not liable for injury sustained by the plaintiff through the negligence of the driver. In the present case the negligence must be that of the driver of the water-cart. The only valid distinction that I can see between the two cases is that here the defendants' inspector directed the driver what streets to water; but that fact does not in any way make the inspector guilty of negligence, or responsible for the act of negligence which was committed. If he had interfered when the accident happened by directing the driver of the cart what to do, the case would be different, but he did no more than point out the streets to be watered.
20. The type of supervision which was exercised by the inspector of the defendants in this case was held not sufficient control over the manner in which the work was to be done by the driver so as to make the defendants liable for the negligence. It was therefore held that there was no relationship as between master and servant between the driver of the cart and the defendants. Steel v. The South-Eastern Railway Co. 16 C.B. 550 was a case more apposite to the one before me. There the work had been for a railway company under a contract and the company were held not responsible for the injury resulting to a third person for the negligent manner of doing the work. It was an action upon the case for an inquiry to certain garden ground of the plaintiff, from the negligent manner of doing certain work by the alleged servants of the company. It appeared that the plaintiff was the occupier of about ten acres of garden ground adjoining the defendants' railway; and that certain workmen, in excavating a road for the purpose of making an embankment for the railway, cut into a drain or culvert, whereby the water was let out over the plaintiff's land, and his crops were damaged. The question was whether'
this was done by any person for whose acts the company were liable. There was evidence to show that the work was being done under the superintendence of one Phillips, the surveyor of the company, who furnished the plans; but one Eaves, the foreman of one Furness, a bricklayer, stated that the work was done by him and the men employed by him, under a contract between Furness, and the company. No contract, however, was produced. Upon his cross-examination, the witness said: I had orders to go on from Mr. Phillips. He is the surveyor of the company. Mr. Phillips was the person who told me what to do. But I was the responsible person to determine in what manner that which Mr. Phillips directed me to do should be carried out.
Crowder, J., at page 553 observed:
The only persons responsible for the acts complained of are Furness and Eaves. The circumstances of the work being done by Furness under a contract, negatives his being a servant of the company. The evidence of Eaves shewed that he was acting quite independently of the company though receiving orders from their surveyor. There clearly was no evidence to fix the defendants.
21. This case goes to show that even though one may direct what work is to be done not occupy (sic) the relationship of master qua the party who is directed to do the work unless and until he also controls the manner in which it was done, which is one of the essentials for determining whether the relationship of master and servant obtains between the parties.
22. There is also a decision of our Court reported in Goolbai v. Pestonji (1934) 37 Bom. L.R. 410 a decision of B.J. Wadia, J. and I shall only content myself with quoting the headnote of that case.
The relationship of master and servant, therefore, exists only between persons of whom the one has the control of the work done by the other. It does not depend merely on the mode of payment for service, or on the power of dismissal, though these are matters which the Court may take into consideration in assessing the relationship. The test is the right of control which one person has as to the manner in which the other does the work.
23. These are the principles according to which I have got to determine whether the relationship between the petitioners and the contract labour was that of employer and employee, so as to bring the contract labour within the definition of employee contained in Section 3(13)(a) of the Act.
24. Considerable evidence was led in this behalf before the Industrial Court. All that evidence has been annexed as Ex. C to the petition and my attention was drawn by counsel on both the sides to the relevant passages from that evidence. There are two classes of employees who are to be considered in connexion with this definition contained in Section 3(13) of the Act. The one is the direct employee and the other employee within the inclusive definition thereof given in Section 3(13)(a). Under Section 3(13) and the main part thereof, the employment has got to be by the employer and the employee is employed to do a skilled or unskilled manual or clerical work for hire or reward in any industry. If this definition has got to be considered, it would be in relation to the position as it obtained between the petitioners on the one hand and the contract labour on the other. The inclusive definition, however, in Section 3(13)(a) of the Act brings within the category of the employee
a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of Sub-clause (e) of Clause (14)
25. If the employer, viz., the petitioners, entered into a contract for the purpose of doing certain work of theirs and the contractor in his turn employed labour, that labour would, though comprised within the category of contract labour, be comprised within this inclusive definition of employee by reason of the terms of Section 3(13)(a) of the Act. This would not be a case of a direct employment of contract labour by the employer, the petitioners. It would be a case where a contractor entrusted with a particular piece of work by the employer would in his turn employ other persons to work for him and he having employed those persons, those persons, i.e., the contract labour were deemed to be employees of the employer by reason of this definition. It would therefore fall to be determined, having regard to the evidence, whether the relationship between the employer, the petitioners on the one hand and the contract labour on the other was between employer and employee by reason of any direct employment or by reason of the contract labour being employed by the contractor in his turn, and from both these points of view it would be necessary for me to scrutinize the evidence led before the Industrial Court.
26. The evidence which was led on behalf of the petitioners herein consisted of G.S. Kulkarni, their estate superintendent, N.D. Bhandarkar, their senior farm overseer, G.B. Kulkarni, their employee in charge of harvesting and cultivation of food crops, and S.S. Tongaonkar, the farm overseer in their employ. These witnesses generally deposed to the fact that so far as the petitioners were concerned they employed what may be called muster labour and what may be called contract labour. Muster labour was the labour where there was a direct employment of the labour by the petitioners, where the names of each and every labourer and workman appeared in the muster roll maintained by the petitioners, they were paid by the petitioners, they were under the direct control and supervision of the petitioners in regard to the work which was to be done and the manner in which it was to be done. When they employed contract labour, the position was, according to their evidence, quite different. They entered into contract with individual contractors or groups of contractors. Even though there were groups of contractors only one person was recognized by them as the contractor for all purposes. The labourers or workmen who were brought in by those contractors, had no direct relationship with the petitioners. Their names were not noted on the muster roll of the petitioners. They were not paid by the petitioners. The bills were made out every fortnight and the payments were made by the petitioners to the contractors and what the contractors did with the money was the contractors' own concern. It depended on the contractors how they worked on the farms, how the moneys were distributed amongst the workers, whether the contractor kept for himself a particular amount or a larger one by reason of his being the leader of those workers was no concern of the petitioners. If there was any complaint to be made with regard to the quality of the work done, these complaints were addressed by the petitioners to the contractors and not to the individual workmen. The workmen could not be dismissed by the petitioners and the contractors were the connecting link, between the employer and the workmen. The petitioners did not know how many individual workers were working in the farm under the contractors. Considering therefore the relationship between the employer, the petitioners, on the one hand and the individual workman on the other, where the contractors were the intermediaries of this type, one can safely say that there was no relationship between the employer and the contract labour within the main part of the definition of employee contained in Section 3 (13) of the Act. These workmen were certainly not employed by the employer. There was no direct relationship between them. The direct relationship, if any, here was between the employer on the one hand and the contractor on the other and there what has to be considered is whether there was as between the employer and the contractors any relationship as between master and servant or employer and employee. A form in respect of the harvesting contract was produced before me and was marked as Ex. 1 in the proceedings. That harvesting contract if one has regard to the substance of it is practically a contract between the employer on the one hand and the contractors on the other. It only lays down the conditions under which the contractor is going to do the work which would be entrusted to him from time to time by the employer. It is of the nature of what has been described in Halsbury's Laws of England. Hailsham Edition, Volume 22, page 115, paragraph 194, the relationship as between the employer on the one hand and an independent contractor OH the other. There would be the directing of what work was to be done so far as the same obtains even in those cases which I have mentioned above 1885 (14) Q.B.D. 890 and 15 C.B. 550. But there is certainly no controlling of the manner of doing that work even with regard to those contractors who sign that contract form. If one has regard to the several terms contained in the contract form which has been put in before me, it would appear that the contractor is liable for various acts of omission and commission. He is in the nature of an independent contractor liable to the other contracting party for default in observation of the various terms of the contract. No doubt there are words used like servant and labourer as well as wages. Those words however have no charm in themselves. What has got to be understood is the relationship between the parties and having regard to the various terms of the contract form, Ex. 1, I am of the opinion that the relationship between the petitioners and the contractors was that as between the employer and independent contractors and not as employer and employees. I shall in this behalf refer particularly to the first paragraph of the agreement where the contractor says that he has agreed to carry out the work on the terms and conditions specified below. He contracts in Clauses 4, 7, 12, 13 and 14 as also Clauses 16 and 17 to do various things which one would not find in a mere contract of employment. As a matter of fact he agrees to make good the loss in Clause 17 which would not be the case if he was a mere employee or a servant of the employer, the petitioners. I need not tarry much over the terms of the contract entered into by an independent contractor with the employer, the petitioners. It does not spell out any relationship between the petitioners and the contractors as between master and servant or employer and employee within the meaning of the main definition of the term 'employee' contained in Section 3 (13) of the Act.
27. If the question as to the direct relationship between the employer and the contractor and also between the employer on the one hand and the contract labour on the other as that of employer and employee or master and servant directly within the main definition of 'employee' in Section 3 (13) of the Act is thus eliminated, the next question to consider is whether the contract labour come within the inclusive definition of 'employee' contained in Section 3 (13)(a) of the Act. Here, however, there is one particular feature which 1 may advert to, and that is that in some parts of the evidence it has been stated that it is not a contractor as such, who approaches the employers but sometime groups of people approach them, and they name their leader or boss or master however he may be called. That is a case where again it may fall to be considered whether all these persons are really employees though in a group or are again independent contractors qua the employers, though dividing in accordance with some arrangement arrived at between themselves the moneys which they would get from the employer on execution of the piece of work entrusted by the employer to them. Here also the same difficulty arises as in the earlier instance which I have dealt with. Even though these -groups may be entrusted with the work of this nature, whether there is a contract in form Ex. No. 1 entered into with the employer or not, the position which obtains 's that there is not control over the manner of doing the work which is exercised by the employer qua these workmen. The only thing which the employer wants them to do is to operate on a particular plot or area and to do the particular operations which are known as harvesting operations etc., on that particular area. The product is a matter for the workmen to bring forward. How they will bring it forward, within what time they will bring it forward, and also the hours they would devote for that purpose is all left to themselves, because they are all agriculturists, they do it at their leisure and convenience. The only thing with which the petitioners are concerned is to take over the product, weigh it and pay the moneys in accordance with the particular computation, and that is all. Even though therefore there is a direction as to what work is to be done, there is no control over the manner in which the work has to be done by these people who are entrusted with the work. The result, therefore, is that even in this case there is no relationship between employer on the one hand and the group on the other, if I may so call it, as between employer and employee or master and servant so as to bring the latter, the contract labour, in the category of employee within the main definition of the term contained in Section 3(13) of the Act.
28. What therefore remains to be considered is whether even though the employers entrust the work to the contractors the contractors in their turn employ these workmen so as as to bring them within the inclusive definition of the term 'employee' contained in Section 3(13)(a) of the Act. Here unfortunately for the respondents 1 and 2, the position is in a very nebulous state. No evidence was laid on their behalf as such before the Industrial Court. They contented themselves with cross-examining the witnesses whose evidence was led on behalf of the petitioners and in the cross-examination I do not find anything which would indicate what was the exact relationship between the contractors on the one hand and what may be called contract' labour on the other. The petitioners as they were bound to do led all the evidence which they could in order to demonstrate what was the relationship between them on the one hand and the contractors and the contract labour on the other. If at all, the position required to be clarified, the burden of clarifying it was on those who wanted to show that this contract labour was really comprised within this inclusive definition contained in Section 3(13)(a) of the Act. The Belapur Kamgar Union was very active in trying to support the contentions of these workmen. The statement was filed by them and I take it they appeared before the Industrial Court in order to represent the case of the contract labour. I am informed that a lawyer appeared to represent their case before the Industrial Court. I am constrained to observe, however, that no evidence was led nor were materials elicited in the cross-examination of various witnesses in order to show what exactly was the relationship between the contractors on the one hand and the contract labour on the other. In the absence of any materials, it is impossible for me to arrive at a conclusion as contended by Mr. G.N. Joshi that the relationship between the contractors on the one hand and the contract labour on the other was as between employer and employee within the definition thereof contained in Section 3(13)(a) of the Act. No doubt in some parts of the evidence it appears that there was a leader or a master or a Muka-dam who would supervise the operations in the case of contract labour. These stray references, however, would not be sufficient to my mind, to lead me to the inference that the relationship between the contractors on the one hand and the contract labour on the other was as between master and servant and that the contract labour were employed by the contractors.
29. I am no doubt aware that even as between employer on the one hand and the contract labour on the other there were various privileges which were given to the contract labour by way of amenities or facilities by the employer. Cheap grain shops, cheap milk, facilities for education of their children, housing, electric connexion, grinding facilities and all these were there. But one can easily understand employers who wanted to get the best out of their employees providing these facilities more for getting really better work and also work with greater energy and in larger quantities than what they would otherwise do in the absence of those facilities. One has known of employers giving food to their employees so that they may not go to their houses and waste 2 hours or more and be available for service much earlier than otherwise if they had not their food catered for by the employers. It is more a matter of self-interest of the employers than a matter of the contract or of the terms of employment as between the employer and the employees; and merely because these facilities are provided particularly by the Belapur Sugar Company as it is evident from the evidence of G.B. Kulkarni who gave evidence on their behalf it does not necessarily follow that the relationship between employer and employee subsisted between these employers and the contract labour.
30. On all the consideration which I have adverted to above, I have come to the conclusion that the contract labour were not comprised within the definition of ' employee' contained in Section 3(13) or Section 3(13)(a) of the Act and therefore there being no relationship as between employer and employee between the employers on the one hand and the contract labour on the other, there could be no industrial dispute under Section 3(17) which could ever be referred by the Provincial Government under Section 73 of the Act for the arbitration of the Industrial Court. Under the circumstances the Indus trial Court had no jurisdiction whatever to entertain this dispute between the employers on the one hand and the contract labour on the other In any event, I am of the opinion that the decision which the Industrial Court arrived with reference to the contract labour that they were employee within the meaning of the term in Section 3(13)(a) of the Act was erroneous and that the Industrial Court was not entitled to assume jurisdiction to decide this dispute as to the bonus between the petitioners on the one hand and the contract labour on the other by arriving at such an erroneous finding On both these counts therefore I am of the opinion that the petitioners are entitled to the relief which they have prayed for in prayer (a) of the petition.
31. In view of my above conclusions it is not necessary for me to go into the question which was argued by Mr. Beynon for the petitioners, viz., that the liability for the payment should not be imposed except by specific provisions in the statute in that behalf. Mr. Beynon contended that the inclusive definition of ' employee' contained in Section 3(13)(a) of the Act was for various purposes inclusive of the purposes mentioned in the Schedule I to the Act which are the subject-matter of standing orders but did not import a direct responsibility on the employer to pay wages or bonus to the employees who came within that inclusive definition. He contended that if there was any pecuniary liability to be saddled on the employer it could only be by an express provision in that behalf and not by any implication of this type. This argument is very interesting, but I shall refrain from dealing with the same in view of my finding that the contract labour are not comprised within the definition of employee contained in Section 3(13) or Section 3(13)(a) of the Act.
32. I shall, however, deal with a further argument which was addressed before me by My. Beynon and that was that the notification applying the Bombay Industrial Relations Act, 1946, to sugar industry was issued on the 8th January 1948 and the provisions of the Act were made applicable to the industry with effect from the the 12th January 1948. Mr. Beynon therefore contended that there was no jurisdiction in the Provincial Government to refer a dispute in regard to the demand of bonus for the year 1947-48, i.e., 1st October 1947 to 30th September 1948, because admittedly the period from the 1st October 1947 to the 12th January 1948 was a period of about 3 months during which time the Bombay Industrial Relations Act did not apply to the sugar industry. This argument of Mr. Beynon, however, does not take count of the fact that the Bombay Industrial Relations Act, 1946, as its preamble shows, has been enacted with a view to regulate the relations of employers and employees in certain matters and to consolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes. The Act has been enacted inter alia with a view to provide for the adjudication of industrial disputes between employers and employees by a process of arbitration on a reference to Industrial Court and that sort of compulsory adjudication of the disputes is one of the purposes of the Act. It cannot be said that when this procedure is evolved by the Government, it can only work with reference to the disputes which may arise not only in the future but in regard to the future relations of the employers and the employees. The industrial disputes of course have got to arise in the future, but they may nevertheless have reference to the relation between employers and employees in the past. The argument can be ligitimately stretched even to cover disputes between employers and employees in relation to what had happened in the industry in some past year or years. The only necessary condition is that that disputes whatever period of time it may relate to and whatever may be the nature of it, though of course comprised in the definition of ' industrial dispute ' contained in Section 3(17) of the Act, must have arisen between the employers and employees and after the notification made the provisions of the Act applicable to the particular industry in accordance with the provisions of Section 2(4) of the Act. I do not therefore see much substance in this contention which was urged by Mr. Beynon for the petitioner.
33. I will, therefore, make an order in terms of prayer (a) of the petition. The rule will be made absolute. The respondents 1 and 2 will of course pay the costs of the petition. Costs will be taxed on a long cause scale.